South Plainfield Properties, L.P. v. Middlesex County Planning Board

In South Plainfield Properties, L.P. v. Middlesex County Planning Board, 372 N.J.Super. 410 (2004) the Appellate Division affirmed the opinion of the Law Division awarding automatic approval for failure of the county planning board to act within the statutory time frame required under the County Planning Act, N.J.S.A. 40:27-1, et. seq.

Under the County Planning Act, a county planning board must report its decision on a proposed subdivision or a proposed site plan, as applicable, to the municipal entity having authority to approve the application for development. If the county planning board shall fail to act within the requisite time period such subdivision or site plan, as appropriate, “shall be deemed to have been approved by the county planning board.” N.J.S.A. 40:27-6.3; N.J.S.A. 40:27-6.7. This 30-day time period may be extended by an additional 30 days upon the mutual agreement of the county planning board, the municipal authority and the applicant.

In South Plainfield Properties, the county planning board over the objections of the developer-applicant adopted a resolution extending the aforesaid 30-day time period by six months. The county planning board made this decision after the developer-applicant had already consented to postpone action on its application for development. In analyzing the circumstances of this case, the Appellate Division distinguished between government inaction that is unintentional, inadvertent or technical in nature and government inaction that is deliberate and purposeful. According to the court in South Plainfield Properties, the former does not justify granting an automatic approval, but the later, which was evident in the instant case, most certainly does. “The . . . [r]esolution provides ‘a clear showing of purposeful delay,’ precisely the conduct that the automatic approval provision was designed to prevent.” Id. at 419 (quoting Eastampton Ctr., LLC v. Planning Bd. of Tp. of Eastampton, 354 N.J.Super. 171, 193-94 (App. Div. 2002)).

The county planning board took the position that by passing a resolution extending the time to act by six months it had sufficiently acted on the developer-applicant’s request for relief to satisfy the requirements of the County Planning Act. The Appellate Division flatly rejected this argument saying “[w]e cannot countenance such an end-run around the statute.” Id. at 417.

The Appellate Division also repudiated the county planning board’s alternative theory, which alleged that the developer was required, but failed, “to exhaust an administrative remedy, specifically, the provision of N.J.S.A. 40:27-6.9 that permits an applicant to appeal from a county planning board action to the County Board of Freeholders.” The court, which had already dismissed the premise that the county planning board’s resolution was sufficient to constitute an “action” under the N.J.S.A. 40:27-6.7, concluded that the said resolution was “equally” insufficient to be construed as an “action for purposes of sub-section 6.9[,]” leaving for another day “the question whether exhaustion of that procedure is a prerequisite to a Superior Court action to enforce the statutory approval provided by N.J.S.A. 40:27-6.7.”

The South Plainfield Properties case is important for two reasons. First, the decision clearly reinforces existing case precedent on the nature and extent of government inactivity that warrants the issuance of an automatic approval. The South Plainfield Properties case also sends a strong message to counties and municipalities that, given the right circumstances, the courts will enforce the automatic approval provisions contained in State land use legislation.