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801 Asbury Park Associates, L.P. v. Planning Board of Ocean City

A-6462-06T1 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING — Where an earlier site plan approval imposes conditions limiting construction on an applicant’s property, the applicant, if, years later, it wishes to construct improvements that contradict the conditions, must obtain court approval for an amendment to the earlier site plan.

A bank tenant in a six-story building sought and received site plan approval to build a bank and drive-through facility on two lots. The application encompassed a total of five lots, as all five lots required reconfiguration and there was a reduction in the total number of parking spaces. Nine years later, the tenant filed applications to construct three buildings on three of those lots. The planning board granted approval contingent on the board’s attorney and engineer finding that the property was not linked or tied in any way with the operation of a bank drive-through facility. The tenant filed an action to seek invalidation of the conditions imposed. The lower court concluded that, under the earlier site plan approval, the lots that would house the proposed buildings were meant to be used as parking lots, and it would require the board’s approval of an amendment to that site plan to construct three buildings on those lots.

The Appellate Division affirmed the lower court’s ruling. It found that the record demonstrated that the earlier site plan approval included the reconfiguration of the parking lots as an integral part of the earlier plan, and so would require the board’s approval of an amendment to the earlier site plan in order to construct the three new buildings on those lots.

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