On appeal from the Superior Court of New Jersey, Law Division, Middlesex County, MID-L-4350-03.
Before Judges Stern, Wecker and S. L. Reisner.*fn1
The opinion of the court was delivered by: Wecker, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Argued September 14, 2004
Defendant, Middlesex County Planning Board (County Planning Board), appeals from a summary judgment entered September 17, 2003, deeming the Board to have granted its approval, pursuant to the automatic approval provision of N.J.S.A. 40:27-6.7 and Middlesex County Site Plan Resolution § 11-5, to the major site plan development application filed by plaintiff, South Plainfield Properties, L.P. (the developer), on May 2, 2003. Defendant also appeals from an order denying reconsideration. We affirm.
Defendant contends that it was error to grant automatic approval pursuant to N.J.S.A. 40:27-6.7, and that even if automatic approval was provided by statute, it was an abuse of discretion not to remand the application to the County Planning Board to allow it to consider appropriate conditions to its approval.
As a matter of background, it is important to recognize certain basic distinctions between a county planning board and a municipal planning board with respect to subdivision and site plan approval. Under N.J.S.A. 40:27-1, creation of a county planning board is optional. Once created, its jurisdiction is more limited than that of a municipal board, and is governed by N.J.S.A. 40:27-6.1 to -6.13. Specifically, subdivision review and approval is governed by N.J.S.A. 40:27-6.2 to -6.5; site plan review and approval by N.J.S.A. 40:27-6.6 to -6.7. See generally Builders League of S. Jersey, Inc. v. Burlington Co. Planning Bd., 353 N.J. Super. 4, (App. Div. 2002).
N.J.S.A. 40:27-6.7 provides:
The municipal or other local agency or individual with authority to approve the site plan or issue a building permit shall defer action on any application requiring county approval... until the same shall have been submitted to the county planning board for its approval of the site plan. The county planning board shall have 30 days from the receipt of a site plan to report to the appropriate local authority. In the event of disapproval, such report shall state the specific reasons therefore. If the county planning board fails to report to the municipal approving or issuing authority within the 30-day period, said site plan shall be deemed to have been approved by the county planning board. Upon mutual agreement between the county planning board and the municipal approving authority, with approval of the applicant, the 30-day period may be extended for an additional 30-day period.
N.J.S.A. 40:27-6.3 similarly provides that where county approval of a subdivision application is required by N.J.S.A. 40:27-6.2 (because of an impact on county roads or drainage facilities), a municipal approval authority must either defer final action, or conditionally approve the application subject to favorable action by the county planning board. N.J.S.A. 40:27-6.3 also provides, in pertinent part:
The county planning board shall report to the municipal authority within 30 days from the date of receipt of the application. If the county planning board fails to report to the municipal approving authority within the 30-day period, said subdivision application shall be deemed to have been approved by the county planning board unless... with approval of the applicant, the 30-day period shall be extended for an additional 30-day period.*fn2
Moreover, failure to act on and report to a municipal approving authority on a subdivision application within the requisite time constitutes a waiver of the county board's right to review, approve, or disapprove the subdivision. That failure allows municipal action on the application and constitutes county approval to meet the recording requirement for filing a subdivision plat. N.J.S.A. 40:27-6.5.*fn3 Although the judgment appealed from refers to approval pursuant to N.J.S.A. 40:27-6.7, which expressly refers to site plan approval, this development application sought both ...