Burcam Corp. v. Planning Bd. of Medford Tp.

• Decision Date: 26 May 1978
• Citation: 160 N.J.Super. 258,389 A.2d 522
• Parties: BURCAM CORPORATION, a New Jersey Corporation, Plaintiff, v. PLANNING BOARD OF the TOWNSHIP OF MEDFORD; Township Committee of the Townshipof Medford, Defendants.
• Court: New Jersey Superior Court

Page 258

160 N.J.Super. 258

389 A.2d 522

BURCAM CORPORATION, a New Jersey Corporation, Plaintiff, v. PLANNING BOARD OF the TOWNSHIP OF MEDFORD; Township Committee of the Townshipof Medford, Defendants.

Superior Court of New Jersey, Law Division.

May 26, 1978.

Timothy M. Prime, Medford, for plaintiff.

Frederick W. Hardt, Burlington, for defendant Planning Bd. of Tp. of Medford (Sever, Hardt & Main, Burlington, attorneys).

Thomas Norman, Medford, for defendant Tp. Committee of Tp. of Medford.

HAINES, J. S. C.

Plaintiff owns a property on Stokes Road in Medford Township, under ten acres in size, for which it sought site plan approval from the township planning board. Plaintiff's application was filed on June 10, 1977. On June 28, 1977 the township adopted an interim site plan ordinance but did not file it with the Burlington County Planning Board. On July 1, 1977 plaintiff supplemented its application by submitting its site plan and an engineer's report. Plaintiff was never advised by the Administrative Officer of Medford Township that its application was complete. However, on August 22, 1977 the planning board held a hearing thereon in which plaintiff participated and at which the board considered recommendations by the township engineers to modify the plan. Plaintiff objected to such consideration because it had no notice of the engineering report and no opportunity to prepare contrary testimony. Defendant offered to continue the hearing to a new date, when plaintiff would be permitted to present its objections. The offer was refused.

At the hearing plaintiff advised the board that its interim site plan ordinance, as well as its prior ordinance dealing with site plans, had never been filed with the Burlington County Planning Board as required by N.J.S.A. 40:55D-16, so that neither was effective, a circumstance of which plaintiff had learned only the preceding day. Plaintiff argued, therefore, that its application had been approved automatically by virtue of N.J.S.A. 40:55D-46, which provides for such approval when a municipality has failed to act within 45 days of the submission of a complete application. The board disagreed and considered the matter on the merits, permitting plaintiff's participation without prejudice.

On August 23, 1977 the township filed its site plan ordinances. On September 15, 1977 the board adopted a resolution approving plaintiff's site plan, subject to various conditions which plaintiff found unacceptable. An appeal was taken to the township committee, which affirmed the board's action. The within prerogative writ action followed.

Prior to the planning board hearing plaintiff was required to deposit $450 with the township, in escrow, to cover engineering and professional reviews. Plaintiff claims this payment should be returned since there was no ordinance authorizing its exaction.

A. Time Calculations

Plaintiff claims automatic approval of its site plan under N.J.S.A. 40: 55D-46(c), which provides that "upon the submission to the administrative officer of a complete application for a site plan for 10 acres of land or less the Planning Board shall grant or deny preliminary approval within 45 days of the date of such submission. * * * Otherwise, the Planning Board shall be deemed to have granted preliminary approval of the site plan." Plaintiff's completed application was submitted on July 1, 1977. The planning board did not act until its hearing was held on August 22, 1977, more than 45 days later.

Subsection (a) of the above statute provides that "if an application for development is found to be incomplete, the developer shall be notified thereof within 45 days of the submission of such application or it shall be deemed to be properly submitted." No notice was given under this proviso and no claim is made by defendants that the application was incomplete after July 1, 1977.

Plaintiff, apparently treating the filing of the ordinances as having a retrospective effect, contends that only one 45-day period was available to defendants, within which time the decision as to whether the application was complete and the grant or denial of preliminary approval had to take place. That period expired before the planning board hearing.

I disagree. The statute is not clear as to how the 45-day periods for administrative and planning board action are to be calculated. No interpretative decisions are available. However, if plaintiff's argument is accepted, the time available to the administrative officer and the board is much curtailed. The officer, particularly when reviewing a plan of any complexity, may need time to obtain engineering and legal assistance; additional information may be required as to traffic, drainage, utilities and the like. The planning board must hear, discuss and decide, in the process of which it may need engineering and legal advice requiring time to provide. More than one hearing may be desirable; in the decision-making process, questions raised at an initial hearing may deserve further review. Pressures produced by inadequate time limitations invite ill-considered rejections by administrative officers and planning boards. It is reasonable to presume that one of the salutary purposes of the Municipal Land Use Law is the shortening of time for municipal action upon development applications. However, an allowance of 90 days for such action, from completed submission to preliminary approval is not unreasonable, and a far shorter time than most applicants experienced under the former practice.

The...