Before Judges Havey, A. A. Rodr¡guez and Lintner.
The opinion of the court was delivered by: Rodriguez, A. A., J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
On appeal from the Superior Court of New Jersey, Law Division, Atlantic County.
Since 1990, McDonald's Corporation, along with the Estate of Leon Freeman and its executrix Judith Brahin (collectively "McDonald's"), has sought to build and operate a fast-food restaurant in Somers Point at the intersection of New Road (Route 9) and Chapman Boulevard.
Plaintiffs have opposed the project from the beginning. In this appeal, plaintiffs contend that changes made to the project after preliminary approval of a Major Site Plan are significant and/or substantial and therefore, the Somers Point Planning Board (Board) was deprived of jurisdiction to consider final site plan approval. Based on the circumstances presented here, we affirm because the changes are not significant or substantial.
On January 16, 1991, the Board granted preliminary site plan approval and several variances and waivers after a public hearing held over five sessions. The project at that time called for an eighty-nine seat fast food restaurant, housed in a 4,200 sq. ft. building, with parking for fifty-five vehicles. The planned restaurant did not have a drive-through window. Access to the property would be through one entrance and exit driveway onto New Road (Route 9) and another on Chapman Boulevard.
Nineteen months later, the Permit Extension Act, N.J.S.A. 40:55D-130 to -136, became effective. This statute automatically extended McDonald's' preliminary site plan approval until December 31, 1996, due to a declared statewide economic emergency. *fn1 In January 1997, McDonald's sought an extension of its preliminary site plan approval pursuant to N.J.S.A. 40:55D-49(c). The Board granted a one-year extension until December 31, 1997.
On August 6, 1997, McDonald's filed an application for final site plan approval. Just prior to filing its application, McDonald's, through its counsel, wrote a letter to the Board's attorney advising that there were "minor changes to the site plan." Based on market forces, McDonald's decided to build a smaller restaurant. The size of the building was reduced to 3,200 square feet. The number of seats was reduced to eighty-four and the number of parking spaces to thirty-seven. The building's length was reduced by 17'8" and its height by 3'4". In addition, access changes were made to meet the requirements of the Department of Transportation (DOT). The driveway from New Road (Route 9) became an entrance only, and a second exit driveway onto Chapman Boulevard was added.
The Board scheduled a hearing. Plaintiffs appeared and objected. Plaintiffs' counsel argued that the Board had no jurisdiction to consider the final site plan because: (1) it was not the project as was approved in 1991; (2) based on the changes this was a new project requiring a new preliminary site plan approval; and, (3) McDonald's failed to supply proper notice to property owners located within 200 feet of the project and failed to provide proper notice of a de facto new major site plan application which would have required conditional use approval. The Board rejected these arguments and determined that the changes were not material or substantial and thus, it had jurisdiction to review the final site plan application. After a substantive review, the Board voted to grant final site plan approval.
The Board scheduled a meeting to adopt the appropriate resolution. Plaintiffs' counsel was advised that the meeting would take place on October 15, 1997. This meeting was subsequently canceled. Despite this, the Board called an emergency meeting on October 15 and approved the resolution. Thereafter and because the Board had apparently failed to comply with the Open Public Meeting Act, N.J.S.A. 10:4-6 to -21, it re-adopted the resolution at its November 17, 1997 regular meeting.
Plaintiffs filed an action in lieu of prerogative writs to challenge the Board's actions on December 8, 1997. McDonald's moved for a dismissal of the complaint arguing that it was filed more than forty-five days after the October 15, 1997 adoption of the resolution. The judge dismissed the complaint with prejudice, finding that the complaint was untimely filed. Plaintiffs now appeal the dismissal of their complaint.
We disagree with the trial judge's conclusion that the complaint was untimely filed. We affirm nevertheless. As to the timeliness of the filing of the complaint, we note that an action in lieu of prerogative writs to review a determination of a planning board must be initiated within forty-five days after the publication of an appropriate notice in the official newspaper of or a newspaper of general circulation in the municipality. R. 4:69-6(b)(3). Here, the complaint was filed within forty-five days of the adoption of the resolution on November 17, 1997 and the publication of the Board's decision on November 26, 1997. It is of no moment that the Board voted on a similar resolution on October 15, 1997. The Open Public Meeting Act permits ratification of an arguably voidable act, provided that the violation was a technical, rather than substantive defect. See N.J.S.A. 10:4-15. The date of the publication of the notice of the Board's re-adoption of the resolution is when the forty-five day period began to run. Accordingly, plaintiffs' complaint was not procedurally barred.
Plaintiffs' first substantive contention is that the Board lacked jurisdiction to consider the final site plan application because there were substantial and material changes from the preliminary site plan. We disagree. An overview of the Major Site Plan approval process is helpful. First, a developer must seek preliminary site plan approval. N.J.S.A. 40:55D-46a requires that a developer must submit "a site plan and such other information as is reasonably necessary to make an informed decision as to whether the requirements necessary for preliminary site plan approval have been met." This section only requires that the plan ...