Agenda - Planning Commission - 11/03/2011

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September 10, 2011 1 Volume 51 No. 17 Zoning Bulletin 129-unit apartment building on the now 20,000-square-foot property ("Project 3"). The Board granted the application. Price again challenged the approvals. Ultimately, the approvals for Project 3 were invalidated in court. The Developer then decided to revert to its original plan for Project 1. In 2008 and 2010, the Developer applied for and received necessary construction permits. In September 2010, Price once again filed a legal action seeking to stop construction of the apartment building. This time, Price argued that the Developer had "abandoned" the land use approvals for Project 1 by applying for and obtaining approvals for Projects 2 and 3. The Superior Court, Law Division rejected Price's argument. Price appealed. DECISION: Affirmed. The Superior Court of New Jersey held that, under New Jersey's Mu- nicipal Land Use Law (the "MLUL") (N.J.S.A. 40:55D-1 to -163), sub- sequent land use approvals for a development site do not result in auto- matic rescission of any prior approvals, unless the subsequent approvals were conditioned upon such rescission. In so holding, the court clarified the issue: "[Does] a landowner who obtains the land use approvals required for a development project, and subsequently obtains the land use approvals for a different form of de- velopment project on the site, lose[] the benefit of the approvals autho- rizing construction of the originally planned project?" The court said the MLUL (and not case law) governed the issue as it relates to site plan approvals and variances. The court found "[t]here 'is no express authori- zation in the MLUL for a municipality to condition the grant of site plan approval upon a developer agreeing to rescission of a previously granted approval for the same site." The court also found nothing in the MLUL's provisions dealing with the granting of variances that "indicat[es] that a property owner who has obtained the variance required for one form of development loses the benefits of those variances simply by obtaining the variance required for a different form of development." The court also found the City had not adopted an ordinance provid- ing that: subsequent land use approvals for a site result in rescission of any prior approvals; or the Board condition its grant of a subsequent ap- plication for land use approvals upon the landowner's agreement to re- scission of any prior approvals. The court further found that the Board had not imposed such a condition in this case when it granted the ap- provals for Projects 2 and 3. The court did acknowledge that a variance could be lost by "abandon- ment." However, the court explained that it was "only the actual use of the property in a manner different from the one authorized by the [variance] that resulted in its abandonment." In any case, here, the court found that 10 © 2011 Thomson Reuters