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Najduch v. Township of Independence Planning Board

2009 WL 5125001 (N.J. Super. App. Div. 2009)

ZONING; VARIANCES; SITE PLAN APPROVAL —Under the Municipal Land Use Law, a planning board does not have the jurisdiction to grant a use variance and therefore cannot grant site plan approval that is conditioned upon the applicant later obtaining a use variance or zoning change because to allow an applicant to bifurcate its application would circumvent the legislative intent that zoning boards have the exclusive power to hear such applications.

In 1989, a property owner’s predecessor in title obtained preliminary site plan approval from a municipal planning board to build a shopping center. The planning board conditioned that approval upon receipt of either a use variance or a zoning change for a portion of the property. The owner’s predecessor did not apply for a use variance or zoning change. The new owner subsequently contracted to sell the property to a developer. The developer then sought approval from the planning board based on the 1989 site plan approval. Shortly thereafter, the municipality’s planning board merged with the board of adjustment to form a single land use board. The land use board decided that the proposed site plan was “substantially consistent” with the approved 1989 preliminary site plan and that the developer’s requested change in the plans could be accomplished through amendment and would related back to the 1989 plan approval. Neighbors of the proposed shopping center sued, challenging the land use board’s authority to grant site plan approval. They claimed, among other things, that the planning board lacked jurisdiction to entertain the 1989 site plan application and that the application’s approval was “void ab initio.” The land use board responded by asserting that the challenge to its ruling was untimely, relying upon Court Rule 4:69-6(b)(3), which requires that any action in lieu of prerogative writs (to review a planning board determination) must be brought within forty-five days after the board’s decision.

The lower court voided the original planning board’s action, holding that the board had no authority to approve the 1989 site plan application from the property owner’s predecessor in title. The Court held that because the shopping center could not have been constructed in 1989 without a use variance, the board of adjustment at the time, and not the planning board, was the proper forum for the application’s consideration. It also concluded that the challenge to the 1989 site plan approval’s validity was timely because it involved the quasi-judicial body’s subject-matter jurisdiction.

The Appellate Division affirmed the lower court’s decision. First, it ruled that where, as here, a use is not permitted by the zoning ordinance, the Municipal Land Use Law (MLUL) requires applicants to seek use variances from the zoning board of adjustment. According to the Court, a planning board, like any state or local administrative agency, was a “creature[] of statute and may exercise only those powers granted by statute.” Under the MLUL, planning boards lack authority to grant a use variance. By statute, if a use variance is required, then the same board of adjustment has the ancillary power to grant such other approvals as may be required, including site plan approval. The purpose of conferring such ancillary jurisdiction is not only to simplify procedures for applicants, but also to “eliminate jurisdictional overlaps” between land use boards and to “reduce costs” of land use law administration. This exclusive authority cannot be circumvented by an applicant simply declining to apply for a use variance, because the board of adjustment has this authority “whenever [a] proposed development requires” a use variance, regardless of whether the applicant chooses to apply for one. Here, the Court held that when the owner’s predecessor in title first applied for site plan approval for a prohibited use without applying for a use variance, it turned the bifurcated application procedure on its head.

The Court also rejected the planning board’s contention that the “forty-five day rule” prohibited actions filed more than forty-five days after the board’s decision on a matter. It ruled that, “even if the time allowed for direct review of a municipal agency’s action ha[d] expired, an action that [is] ‘utterly void’ … is ‘subject to collateral attack at any time.’” Where there is no semblance of compliance with or authorization in the governing ordinance, as was the case here, the deficiency is deemed jurisdictional. Accordingly, it held that the lower court was correct when it ruled that the neighbor’s challenge to the 1989 site plan’s validity was timely.

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