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Hess Corp. v. Burlington County Planning Board

SUPERIOR COURT OF NEW JERSEY APPELLATE DIVISION


June 12, 2007

HESS CORPORATION, PLAINTIFF-RESPONDENT,
v.
BURLINGTON COUNTY PLANNING BOARD, DEFENDANT-APPELLANT.

On appeal from the Superior Court of New Jersey, Law Division, Burlington County, Docket No. L-479-06.

Per curiam.

NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION

Argued May 23, 2007

Before Judges Cuff, Fuentes and Baxter.

Defendant Burlington County Planning Board (Board) appeals from an August 15, 2006 order granting summary judgment to plaintiff Hess Corporation. In a written decision, the trial court concluded that defendant's failure to approve or deny plaintiff's application to construct an egress driveway onto a county road within the thirty days specified by N.J.S.A. 40:27-6.7 entitled plaintiff to automatic approval of its submission. The record fully supports the judge's conclusion that the Board's failure to act upon plaintiff's application within the statutory deadline was not the result of inadvertence, ignorance or misunderstanding as to the operation and mechanics of the statute. We agree with the judge's conclusion that instead the Board engaged in a purposeful course of conduct of delay and inattention to plaintiff's submission, and that consequently the application of the automatic approval provisions of N.J.S.A. 40:27-6.7 was justified. We therefore affirm substantially for the reasons set forth by Judge Sweeney in his well-reasoned and comprehensive written opinion of August 4, 2006. R. 2:11-3(e)(1)(A), (E).

We add only the following comments. Judge Sweeney's opinion did not explicitly address the public safety exception to the automatic approval process that we identified in D'Anna v. Planning Board of Township of Washington, 256 N.J. Super. 78, 84 (App. Div.), certif. denied, 130 N.J. 18 (1992). There, we held that where significant issues of public safety are presented, courts should refrain from applying an automatic approval, even though it might otherwise be appropriate to do so. Ibid.

We discern from Judge Sweeney's discussion of plaintiff's traffic expert's report a conclusion that the proposed egress driveway would have no adverse impact on traffic safety, a conclusion well-supported by the record. Ultimately, we agree with Judge Sweeney's observation during argument of the summary judgment motion that if the issue of public safety was as important as the Board claimed, it should have taken definitive action and denied plaintiff's application within thirty days of its filing.

Affirmed.

20070612

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