N.J. Appellate Division Affirms Default Approval of Substantially Complete Application for Redevelopment Project

The New Jersey Appellate Division recently affirmed a trial court’s grant of an automatic site plan approval for an 87-unit multi-family residential project with possible commercial space on the ground floor in Jersey City. The decision simultaneously sheds light on what it means for an application to be “complete” and when the Municipal Land Use Law’s proverbial 95-day stopwatch for the grant or denial of preliminary approval begins ticking.

In Bright and Varick Urban Renewal Co. LLC v. Jersey City Planning Bd., after the City designated the subject property as an area in need of redevelopment and adopted a redevelopment plan, the designated redeveloper filed an application seeking site plan approval for the project. The City’s Principle Planner informed the redeveloper that it needed to submit an additional 12 outstanding items before the application would be considered. The redeveloper submitted 11 of the 12 outstanding items, and stated it would provide the twelfth item upon request. Thereafter, the Principle Planner confirmed in writing that the application was “substantially complete,” and requested the redeveloper make minor changes to its plans without mentioning the twelfth outstanding item. Two months later, the City had concerns about the density of the project, tabled the application for another approximately two months, and then ultimately denied the application due to the ambiguity surrounding the project’s density.

The redeveloper filed an action in lieu of prerogative writs, in which a community group intervened, and the trial court held that the redeveloper was entitled to an automatic approval due to the Planning Board’s failure to timely act in accordance with N.J.S.A. 40:55D-46(c), since the Principle Planner had deemed the application “substantially complete.” Pursuant to N.J.S.A. 40:55D-46(c), once an application is “complete,” the “planning board shall grant or deny preliminary approval within [95] days of the date of such submission.”

On appeal, the community group alleged that the trial court erred in granting automatic approval because the application was never at the substantial state of completion to trigger the 95-day period. The appellate division rejected this argument, relying on the New Jersey Supreme Court’s decision in Manalapan Holding Co. v. Planning Board of Hamilton, which held that land use statutory time frames are strictly applied, except when government inaction or mistake is “unintentional or inadvertent.” According to the two-judge appellate panel, neither of these two exceptions were present here. Furthermore, the court stressed that “the MLUL requires a submission to include the necessary documentation for the approval time under N.J.S.A. 40:55D-46(c) to trigger the timeframe.” The Appellate Division held that “despite some parsing of language,” the Principle Planner made a completeness determination when it wrote to the redeveloper and stated the application was “substantially complete.” Accordingly, the Appellate Division affirmed grant of the default approval.

Jennifer P. Smith is a Director in the Gibbons Real Property & Environmental Department.
Print