Bruce Davis IX
Junior Member
What is the name of your state (only U.S. law)? New Jersey
A neighboring family, whom I'll call "the applicants", filed a construction application over a year ago with the municipal Zoning Board of Adjustment seeking a variance. After several months of delays requested by the applicants' attorney, it was finally heard. During the hearing, the board discovered erroneous information presented in the application, substantiated by evidence presented by the applicants. At that point, their attorney requested an adjournment. The board advised that the public would have to be re-noticed, which the applicants did. This time, however, it was a notice for an interpretation. Again, there were several continuation requests by the attorney (NJSA 40:55D-72.1). When the application was finally heard, several neighbors spoke in opposition, citing well-established municipal law. The applicants attorney again requested a continuation. Following the hearing, there have been at least four consecutive requests to continue without further notice to the public, all of which have been granted by the board. The reasons being: Insufficient amount of voting members for a variance; Weather problems; Vacations; Illness; etc.
I understand that NJSA 40:55D-73 provides the following relief: "Failure of the board to render a decision within such 120-day period or within such further time as may be consented to by the applicant, shall constitute a decision favorable to the applicant." My question is, based on the above facts, has the 120-day period elapsed? And if so, can a default favorable judgment to the applicants be appealed by interested parties? Is there also any limitation on how often such an application can be continued?
A neighboring family, whom I'll call "the applicants", filed a construction application over a year ago with the municipal Zoning Board of Adjustment seeking a variance. After several months of delays requested by the applicants' attorney, it was finally heard. During the hearing, the board discovered erroneous information presented in the application, substantiated by evidence presented by the applicants. At that point, their attorney requested an adjournment. The board advised that the public would have to be re-noticed, which the applicants did. This time, however, it was a notice for an interpretation. Again, there were several continuation requests by the attorney (NJSA 40:55D-72.1). When the application was finally heard, several neighbors spoke in opposition, citing well-established municipal law. The applicants attorney again requested a continuation. Following the hearing, there have been at least four consecutive requests to continue without further notice to the public, all of which have been granted by the board. The reasons being: Insufficient amount of voting members for a variance; Weather problems; Vacations; Illness; etc.
I understand that NJSA 40:55D-73 provides the following relief: "Failure of the board to render a decision within such 120-day period or within such further time as may be consented to by the applicant, shall constitute a decision favorable to the applicant." My question is, based on the above facts, has the 120-day period elapsed? And if so, can a default favorable judgment to the applicants be appealed by interested parties? Is there also any limitation on how often such an application can be continued?
