On appeal from the Superior Court of New Jersey, Law Division, Cape May County, Docket Nos. L-705-06, L-708-06, L-709-06 and L-72-07.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Submitted January 7, 2008
[Argued via Telephone Conference January 7, 2008]
Before Judges A. A. Rodríguez and C. S. Fisher.
In these appeals, which we have calendared back-to-back, the Ocean City Planning Board (Board) appeals from the May 30, 2007 Law Division orders granting default approvals for preliminary and final site plan pursuant to N.J.S.A. 40:55D-10.4 to Donald W. Johnson and Samuel Johnson, Jr. (the Johnsons) and O.C. Elite Homes (Homes). We reverse.
In A-5505-06T2, the Johnsons sought to construct three-story mixed-use buildings, with the ground floor being commercial and the second and third floors residential. On March 16, 2006, the Johnsons submitted an application to the Board for certain land use approvals. At the time of the application, the proposed development complied with all zoning ordinances, including those regulating parking. On May 1, 2006, these applications were deemed "complete" under the Municipal Land Use Law (MLUL).*fn1
Regarding A-5534-06T2, Homes sought to construct a three-story mixed-use building with up to four commercial units on the first floor and six residential apartments on the second and third floors. On March 13, 2006, Homes submitted an application to the Board for preliminary and final plan approval with bulk-variance requests and engineering waivers. At the time Homes submitted its application, it complied with all zoning ordinances, including those regulating parking. This application was subsequently deemed complete.
The Board scheduled hearings on the applications for July 12, 2006. However, on that date, the Board tabled the applications because of the impending passage of Ordinance No. 06-20, commonly referred to as the "ZLDO Amendment," which would amend Ocean City's Zoning and Land Development Ordinance with respect to parking requirements and necessarily impact the applications. The following day, the Ocean City Council (Council) passed the ZLDO Amendment, which was adopted on July 27, 2006, and became effective August 16, 2006. On August 15, 2006, the Board notified the Johnsons and Homes that the hearing on these applications would be held on September 6, 2006. On the scheduled date, the Board dismissed the applications with prejudice.
Subsequently, the Johnsons and Homes applied to the Board for a default approval. The Board refused to issue certificates of default approval. The Johnsons and Homes, thereafter, filed an action in lieu of prerogative writs. The judge heard these matters together with two others. The judge issued a written opinion in favor of the Johnsons and Homes, finding that based on the MLUL, the applications were complete on April 27 (Homes) and May 1 (Johnsons), citing to N.J.S.A. 40:55D-10.3. The judge concluded that the Board engaged in "intentional municipal inaction" and its delay was "deliberate."
Furthermore, the judge deemed the Board's decision to deny the Johnsons and Homes certificates arbitrary, capricious and unreasonable and ordered the Board to issue certificates of default approval pursuant to the ordinance in effect on the date the applications were deemed complete.
The Board filed this appeal, contending that the judge erred by holding that the Johnsons and Homes were entitled to certificates of default approval. We agree.
Pursuant to the MLUL, automatic approval occurs if after 120 days of an application becoming complete, the municipal body fails to act on it. N.J.S.A. 40:55D-61. An application is "complete" when so certified by the municipal agency or, if the agency fails to act, 45 days after the application is submitted. N.J.S.A. 40:55D-10.3. However, the MLUL's automatic-approval provisions must be applied with caution. Mere technical or inadvertent mistakes do not warrant default approval. See Eastampton Center, LLC v. Planning Bd. (ECLLC), 354 N.J. Super. 171, 193 (App. Div. 2002) ("Despite the seemingly mandatory language of [the statute], there is ample precedent for a court to deny automatic approval" when the "failure to act . . . is technical or inadvertent, and where there is no evidence of intentional delay or inattention to the application.").
A court should only impose the automatic approval remedy to address present and prevent future "bad faith, sharp practice, overreaching or dilatory conduct" by a municipal body, Allied Realty, Ltd. v. Borough of Upper Saddle River, 221 N.J. Super. 407, 419 (App. Div. 1987), certif. denied, 110 N.J. 304 (1988), not when the "inaction was 'technical or inadvertent, and where there is no evidence of intentional delay or inattention to the application.'" So. Plainfield Properties, L.P., 372 N.J. Super. 410, 417 (App. Div. 2004) (quoting ECLLC, supra, 354 N.J. Super. at 193). Examples of technical or inadvertent delays are misfiling of the application by a planning board employee, as in D'Anna v. Planning Bd., 256 N.J. Super. 78, 80 ...