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

• Decision Date: 29 May 1979
• Citation: 403 A.2d 921,168 N.J.Super. 508
• Parties: BURCAM CORPORATION, a New Jersey Corporation, Plaintiff-Appellant, v. PLANNING BOARD OF the TOWNSHIP OF MEDFORD, Township Committee of the Townshipof Medford, Defendants-Respondents.
• Court: New Jersey Superior Court — Appellate Division

Page 508

168 N.J.Super. 508

403 A.2d 921

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

Superior Court of New Jersey, Appellate Division.

Argued April 30, 1979.

Decided May 29, 1979.

Timothy M. Prime, Medford, for plaintiff-appellant.

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

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

Before Judges FRITZ, BISCHOFF and MORGAN.

PER CURIAM.

Plaintiff Burcam Corporation applied for site plan approval to construct an office building. Defendant Planning Board of the Township of Medford, after a hearing, approved the site plan subject to 15 conditions to which plaintiff objected. Defendant Township Committee of the Township of Medford affirmed the action of the planning board. Plaintiff, by a proceeding in lieu of prerogative writs, appealed to the Superior Court, and the trial judge in a reported decision, 160 N.J.Super. 258, 389 A.2d 522, granted summary judgment to defendant. Plaintiff appeals ¹.

The facts are set out in detail in the opinion of the trial judge and will only be restated here to the extent necessary to present the issues raised on appeal.

Plaintiff submitted its application for site plan approval on June 10, 1977. At that time there was no site plan review ordinance in effect in the township. An interim site plan ordinance was adopted June 28, 1977, but it was not filed with the county planning board as required by N.J.S.A. 40:55D-16. Plaintiff supplemented its application on July 1 by submitting an engineering site plan and report.

On August 22, 1977 the planning board held a public hearing on plaintiff's application. One of the objections raised by plaintiff to the conduct of the hearing was that the site plan ordinance was invalid because it was not filed with the county planning board as required by N.J.S.A. 40:55D-16. Plaintiff also contended it was entitled to preliminary approval of its site plan because the planning board failed to grant or deny preliminary approval within 45 days of the submission of the complete application in accordance with the terms of N.J.S.A. 40:55D-46(c).

The site plan review ordinance was filed the following day, August 23, 1977, and on September 15 the board adopted the resolution approving plaintiff's site plan with conditions as indicated above.

Plaintiff's first contention on this appeal is that since there was no valid site plan ordinance in effect at the time plaintiff filed its application, the application stands approved by operation of law.

We agree with the interpretation of the trial judge that the ordinance in question in the instant case was effective as of the date it was filed. 160 N.J.Super. at 264, 389 A.2d 522. Nevertheless, plaintiff's argument that it is entitled to approval of its application because no ordinance was in effect on the date of the initial filing of the application is without merit. In the area of land use, a municipality may change its regulating ordinances after an application has been filed and even after a building permit has been issued and, as long as the applicant has not substantially relied upon the issuance of the building permit, it is subject to the amended ordinance. This is even so where the municipality amends its ordinance in direct response to the application. Morris v. Postma, 41 N.J. 354, 362, 196 A.2d 792 (1964); Allendale Congregation of Jehovah's Witnesses v. Grosman, 30 N.J. 273, 277, 152 A.2d 569 (1959), app. dism. 361 U.S. 536, 80 S.Ct. 587, 4 L.Ed.2d 538 (1960); Hill Homeowners Ass'n v. Passaic, 156 N.J.Super. 505, 512, 384 A.2d 172 (App.Div.1978); Sandler v. Springfield Tp. Bd. of Adj., 113 N.J.Super. 333, 273 A.2d 775 (App.Div.1971); Crecca v. Nucera, 52 N.J.Super. 279, 284, 145 A.2d 477 (App.Div.1958). Thus, the regulatory ordinance effective August 23 must control plaintiff's application.

Subsection (a) of N.J.S.A. 40:55D-46 requires that the municipality notify the developer of any defect in an application for developments within 45 days of submission. Subsection (c) states that "(u)pon the submission * * * of a complete application * * * the planning board shall grant or deny preliminary approval within 45 days of the date of such submission * * *."

Plaintiff argues that even if the time limitations contained in N.J.S.A. 40:55D-46(a) are applicable, its application was completed and filed by July 1 and stands approved by operation of law, since the hearing was held and conditional approval granted more than 45 days after July 1, 1977. Plaintiff further argues that while the "time calculations" of the trial judge set forth in his reported opinion at 160 N.J.Super. 259, 263-265, 389 A.2d 522, giving the municipality two consecutive 45-day periods within which to act, may be proper in cases where the acceptability of the application is at issue, the calculations are inapplicable here since plaintiff's application was admittedly completed and filed by July 1. Under N.J.S.A. 40:55D-46(c), the argument continues, the township committee had 45 days after July 1 to act on the completed application and, not having done so within that time period, plaintiff's application stands approved by operation of law.

We disagree. It is significant that here plaintiff voluntarily supplemented its application on July 1. We accept that date as the date of filing. We also agree with the trial judge's "time calculation" in which he concludes that N.J.S.A. 40:55D-46(a) must be read in conjunction with N.J.S.A. 40:55D-46(c) to...