()

The Municipal Land Use Law has long imposed time limits within which local planning and zoning boards must hear and decide development applications. According to the law, such applications should be heard and decided by the board on the merits within a specified time. Applicants are entitled to an efficient process and timely decision, which should not be unduly delayed by either the board or the actions of objectors. The statutory penalty for delay is harsh. When a deadline is exceeded, an application is deemed approved by operation of law.

Over the years, courts have been understandably reluctant to enforce default approvals, even when a deadline has clearly been missed. A showing of mistake, inadvertence or other unintentional delay by the board is usually enough to persuade a court not to impose a default approval. Land development applications are best decided on the merits of zoning and planning issues, and communities should not be saddled with unwanted development simply because a planning board missed a deadline.

Some local boards make a universal practice of demanding that applicants waive the time limits. If the applicant refuses, a board may deny the application “without prejudice” and claim that there is no basis for a default approval.

Where boards knowingly and intentionally refuse to hear applications within the time allotted, courts have clamped down.

Most recently, in Shipyard Associates v. Hoboken Planning Board, the Appellate Division considered a case in which a developer filed an application with the planning board, and at the same time, the municipality sued the applicant over a contractual dispute over an earlier project. There was an outpouring of opposition to the project from the community. The planning board refused to hear the application, denying it “without prejudice,” until such time as the litigation was either decided or resolved.

Both the trial court and the Appellate Division decided that a default approval was the appropriate remedy. The appellate panel decided that the board’s action amounted to “an end-run around the statute” because the board unlawfully granted itself an extension of time to hear a controversial application until the city’s lawsuit was decided. The court noted that the board could have heard and approved the application conditioned on the outcome of the city’s lawsuit; or it could have timely denied the application. But the board’s failure to act triggered the automatic default approval contemplated by the statute. In the words of the court, “If there is a lesson to be learned from this case, it is that the rule of law is paramount and cannot be sidestepped to avoid deciding unpopular land use applications.”

Shipyard Associates rightly enforced the rule of law. Local boards are once again on notice that if they intentionally delay hearing and deciding applications, a default approval will likely result.