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Allocco v. Township of Holmdel

299 N.J. Super. 491, 691 A.2d 430 (Law Div. 1997)

MUNICIPALITIES; ZONING—Applicant, in a bifurcated hearing, obtained a use variance subject to later site plan approval. Before site plan approval could be given, the municipality changed its master plan. The subsequent site plan approval must meet the new master plan.

A company received approval for a use variance conditioned on further site plan review by the Board of Adjustment of the Township of Holmdel (“Board”). At the same time it was reviewing the corresponding site plan, the Township adopted a master plan ordinance that affected the company’s desired use of its property. Two months later, the Board denied site plan approval and the company sued, arguing that the prior granting of a use variance protects it from a subsequent ordinance and from negation of a site plan. The company cited a case where the Court had concluded that a use variance creates a conforming use of unlimited duration that runs with the land.

The Appellate Division stated that the issue concerned the basic authority under which a board can grant the relief requested in a site plan, and whether the Board in this case wrongfully denied site plan approval. In its view, this case went beyond the simple application of the “time of decision” rule. Although the granting of site plan approval normally requires only a determination whether provisions of the specific ordinance have been met, bifurcated approval following the granting of a use variance requires, “a specific determination whether the approval can be granted without substantial detriment to the public good, and without substantial impairment of the intent and purpose of the zone plan and zoning ordinance.” N.J.S. 40:55D-76b. The purpose is to insure that a board’s creation of a conforming use through its approval of a use variance is reconciled with the existing zoning scheme. Additionally, the variance cannot be seen as a blanket license for a board to “legislate” a new use. These “negative criteria” are to be addressed at the site plan approval stage and the Appellate Court found that the company failed to address them. Therefore, the Court upheld the Board’s denial of the site plan and refused to remand the case, “simply to permit the company to make a better case than it chose to do in the first instance.” However, the Court did state that the company could submit a new plan or seek appropriate variance relief.


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