Agenda - Planning Commission - 04/01/2010

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Zoning Bulletin February 10, 2010 I Volume 4 I No. 3 tations on development: The construction site was located in a statutorily protected "preservation area." State statutory law placed "severe limita- tions upon development in the preservation area." However, development projects that received preliminary or final site plan approval before March 29, 2004, were excepted from those limitations. Eventually, the Board granted Liberty "amended `final site plan ap- proval' (the "2007 Approval")". The 2007 Approval was "predicated on 'the [1989 Approval]'." Wayne and Andrea Najduch owned property adjoining Liberty's pro- posed shopping center. The Najduchs brought a legal action challenging the Board's grant of the 2007 Approval for the shopping center. Among other things, the Najduchs argued that the Board never had the authority to grant the 1989 Approval to Owen's predecessor in title. As such, they argued that the Board's 2007 Approval was void. In 1989, when Owen's predecessor in title obtained the 1989 Ap- proval, the Property was located partly in a residential zone. Commer- cial uses were prohibited in that zone. The Board addressed that prohi- bition by conditioning the 1989 Approval upon Owen's predecessor in title obtaining either: (1) a use variance; or (2) a change in the zoning of the part of the Property located in the residential zone. (In 2003, the township rezoned part of the Property. As a result, at the time of Liber- ty's application, commercial uses were permitted on all of the Property.) The Najduchs contended that the Board could not grant the 1989 Approval for the shopping center since (in 1989) commercial uses were prohibited in the zoning district where the Property was located. They maintained that the Board did not have the authority to condition the approval as it had done. Finding there were no material issues of fact in dispute, and deciding the matter on the law alone, the Superior Court issued summary judgment in favor of the Najduchs. The court concluded that "because the proposed shopping center could not have been constructed [in 1989] without a use variance," the development application should have been considered by the township's Board of Adjustment (the "BOA"), not the Planning Board. Owen appealed. It asked the court to find that the 1989 Approval was valid (and therefore the 2007 Approval was valid). The Court's Decision: Judgment of superior court affirmed. The Superior Court of New Jersey, Appellate Division, held that the Board lacked authority to grant the 1989 Approval. The court said this was because the proposed shopping center was a prohibited use in the zoning district in 1989. Planning boards, said the court, only have au- thority "to grant site plan approval for a development that is a permit- ted use in the zoning district." Otherwise, site plan approvals for uses prohibited in a zoning district must come from boards of adjustment -- who must first grant a use variance. The court explained that New Jersey's Municipal Land Use Law ("MLUL") "reserved to the governing body the power to enact zoning ordinances ... including the exclusive power to determine the permitted m 2010 Thomson Reuters 3 51