Davis v. Planning Board of The City of Somers Point

327 N.J. Super. 535, 744 A.2d 222 (App. Div. 2000)
  • Opinion Date: January 31, 2000

ZONING; SITE PLAN APPROVAL—Changes made to a project six years after preliminary site plan approval had been granted will not bar the grant of final approval where the changes reduce the scale of the project.

A fast food restaurant obtained preliminary site plan approval for a 4,200 square foot building with parking for 55 vehicles. Pursuant to various laws, the preliminary site plan approval was extended for over six years. Finally, the restaurant filed an application for final site plan approval. Just prior to its filing of the application, it advised the board that there were “minor changes to the site plan.” Based on market conditions, it decided to build a smaller restaurant with fewer seats and fewer parking spaces. Both the length of the building and its height were reduced. In addition, access changes were made to meet the requirements of the New Jersey Department of Transportation. At a hearing, objectors appeared and argued that the Board had no jurisdiction to consider the final site plan because it was not the project as was approved six years earlier, but was a new project requiring a new preliminary site plan approval for which a proper notice should have been given. The Board rejected those arguments and determinated that the changes were not material or substantial and thus, that it had jurisdiction to review the final site plan application. After review, the Board approved the plan. The Major Site Plan approval process calls for a developer to first seek a preliminary site plan approval by submitting “a site plan and such other information as is reasonably necessary to make an informed decision as to whether the requirements necessary for preliminary site plan approval have been met.” This requires only that the plan and other documents be in “tentative form for discussion purposes” and that “preliminary” architectural plans and elevations are sufficient. Preliminary approval confers certain rights on an applicant, such as protecting it from subsequent zoning changes for a specific period. During that period, the applicant may file for final approval. After receiving preliminary approval, when the developer applies for final site plan approval, the “planning board shall grant final approval if the detailed drawings, specifications and estimates of the application for final approval conform to the standards established by ordinance for final approval, [and] the conditions of preliminary approval.” According to the Court, modifications of the preliminary plans to the final plans can be expected. Nonetheless, substantial changes may require the developer to seek preliminary site approval again. Here, the Court concluded that the lower court should have upheld the board’s determination that it had jurisdiction to review the final site plan because the changes were not a significant or substantial revision of the preliminary site plan. In this case, the project got smaller and the changes to the driveways were mandated by the Department of Transportation and were designed to address the Board’s concern regarding traffic in the area. The decision to reduce slightly the size of the building was compelled by technical innovations over a six-year period in the rapidly-developing fast-food industry. A reduced need for parking and increased set-backs followed the decrease in size of the building. The Court found that the changes were not substantial and therefore did not rise to the level that would require the developer to reapply for preliminary site plan approval.