Agenda - Planning Commission - 11/05/2009

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July 25, 20091 Volume 3 I No. 14 Zoning Bulletin The Board arid Glynn contended that the December 13, 2004 hearing did not "count" because Glynn's application had been incomplete at that time since all parties had then wrongly assumed that the road' adjacent to the property was public. They arguedthat"therefore the Board lacked ju- risdiction at that meeting, and the Board member's absence at that meet- ing was therefore iirelevant. DECISION: Affirmed in part, r~versed in part, arid remanded. n < The Superior Court of New Jersey, Appellate Division, held. that Glynn's . application was not incomplete as of the December 13, 2004 hearing so as to deprive the Board of jurisdiction over the hearing. Glynn had not failed to comply with procedural requirements of the applica- tion ordinance. An~, the mistaken assumption at that hearing that the road adjacent to Glynn's property was public did not cause the applica- tion to be rncomplete. Rather, state statutory law allowed for correction of any information fpund to be in error, and specifically provided that applications were not incomplete for lack of any information or for any. revisions required. Further, Glynn's application had not become a sub- stantially new application after he and the Board became aware of the mistaken assumption about the road. Here, the "central focus of th[e] entire case hard] been the three-lot subdivision of [Glynn's property]." That did not change throughout the process. Therefore,. the Decemberr"J.. 13, 2004 hearing "counted" in that the missing Board member was in- eligible to vote on Glynn's application without first making the required certifications (which that Board member had not made). The court rejected the Neighbors' contention that the proper remedy. for an ineligible Board member's vote was' to strike the v:ote. Rather, the court said that the participation and vote of an ineligible member gen- erally voided the entire proceedings, requiring a new hearing. However, ni.ther than denying the application outright and putting all parties to the cost and expense of an entire new hearing, the court held that the "log- ical remedy;' for a vote by an ineligible member was to: "remand the matter to the Board and have all current members deliberate and reyote, with those who had not att~nded one or all of the hearings in [the] mat~ ter review the transcript of any [meetings missed], certify they have done so, and then have them deliberate and vote. as well." Such a remedy, 'con- cluded the court, would fulfill the legislative intent, which was to "make sure that those who vote on [land use] applications are fully informed of what transpired d~ing all hearings on that application." See also: Lake Shore Estates, Inc. v. Denville Twp. Planning Rd., '255 N.J. Super. 580, 605 A.2d 1106 (App. Div. 1991), aff'd;' 127 N.J. 394, 605 A.2d1073 (1992). 12 @ 2009 Thomson Reuters 64 I I i I I' )