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Cortesini v. Hamilton Township Planning Board

417 N.J. Super. 210, 9 A.3d 185 (App. Div. 2010)

ZONING; VARIANCES — Where a great deal of time has passed since site plan approval was granted despite everyone’s failure to realize that a needed variance was missing, no objection to the approval can be raised and subsequent approvals can essentially validate the original missing variance.

A developer applied for site plan approval and associated bulk variances for a large commercial development designed to contain offices, retail stores, and restaurants. After the planning board granted the application, the developer then applied for a subdivision approval to enable major retailers to own their own properties on the site. Although the developer drew lot lines that went directly through the proposed parking lot, it failed to apply for a variance from a provision of the zoning ordinance that required parking spaces have a fifty foot set back from lot lines. The board failed to note this, and granted the developer’s application.

Eight years later, a large major retailer decided to renovate its store and increase its size by almost 4 percent. It sought a new site plan approval. The small expansion footprint of the renovated store was far from any areas of the parking lot that failed to conform to the parking area setback requirement. The site plan included new parking spaces, all conforming with the parking area setback requirement. Although the retailer applied for various variances and approvals in connection with the site plan approval, it did not apply for a variance from the parking area setback requirement with respect to the existing parking spaces. The board granted the application even though it now recognized the nonconformity of the existing parking lot. In its memorializing resolution, it set forth that the non-conformity was an existing condition that was functioning well and had not had a detrimental impact on the zone plan.

Objectors sued, asserting for appeal purposes that the retailer should have sought a bulk variance authorizing the nonconformity of the existing parking spaces when it obtained a new site plan approval for its proposed renovation. The lower court rejected this argument, holding that the original board resolution took into account a zero setback for the parking spaces, and found that such a setback satisfied applicable variance criteria.

On further appeal, the Appellate Division affirmed, and also found that the proposed renovation did not affect the nonconformity. The Court also held the current challenge to the renovation approvals was an untimely collateral attack on the original land use approvals granted eight years earlier. It pointed out that objections to the original approvals had to be made within 45 days after the original approvals had been granted. Further, according to the Court, it was undisputed that the new parking spaces would conform to the parking area setback requirement, and that the nonconforming existing spaces were all located a substantial distance from the renovation location. There was no basis for arguing that the impact of the nonconformity of those existing spaces would be increased by the renovations. Moreover, the board, in its resolution approving the renovations, appeared to say that if a variance request had been made for a zero setback for the original spaces, the board would have approved it, as it stated the existing condition was functioning well and did not have any detrimental impact to the zone plan.


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