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Kite v. Township of Pennsville Planning Board

A-0771-08T2 (N.J. Super. App. Div. 2010) (Unpublished)

ZONING; SITE PLANS — New Jersey law only requires an amended site plan application if the plans submitted for final approval are substantially different from those submitted for preliminary approval.

The contract purchaser of a seventy-eight acre lot filed an application for preliminary major subdivision and site plan approval to build a big box store and a separate retail shopping center. In response to input from the Department of Transportation and the zoning board, the purchaser modified its plan to allow access to the project by creating a road that bisected the property. It also reduced the number of subdivided lots from eight to four. The zoning board approval the application and memorialized its approval in a resolution. A resident of the municipality then filed a challenge to the board’s grant of use and signage variances with the municipal committee pursuant to N.J.S.A. 40:55D-17 and to the municipality’s land development ordinance. Then, the resident challenged each of the approvals granted by the zoning board. After the municipal committee failed to render a timely decision as required by N.J.S.A. 40:55D-17, she filed an amended complaint challenging the committee’s approval of the zoning board’s decision through inaction. At trial, the lower court affirmed the zoning board’s decision except for its grant of the signage variances. It remanded the issue back to the zoning board for further review and factual findings.

In the interim, the purchaser’s contract expired and it withdrew its application. Then, the lower court amended the judgment to vacate the sign variances originally granted. The resident appealed, claiming that the lower court improperly failed to require the purchaser to file an amended application after substantial changes were made to the proposed layout of the improvements during the course of the hearings. The Appellate Division rejected the argument. It noted that the relevant statute, N.J.S.A. 40:55D-46(b), only requires an amended application if the plans submitted for final approval are substantially different from those submitted for preliminary approval. However, an amended application to be filed if the changes are those typically and routinely made during the approval process. If the changes are not a substantial or significant revision of the preliminary site plan, then an amended application is not necessary. In this case, the modifications reduced the number of proposed lots from eight to four, and removed a gas station from the proposal. The Court found that the changes, which made the project smaller, were not substantial or significant enough to warrant requiring the purchaser to file an amended application.


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