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Viecelli v. Planning Board of the Borough of Point Pleasant

A-1778-06T5 (N.J. Super. App. Div. 2008) (Unpublished)

ZONING; SITE PLANS; CERTIFICATES OF OCCUPANCY — A planning board does not abuse its discretion when it requires an amended site plan if deviations from the approved site plan are other than de minimis.

A property owner sought site plan approval from a municipal planning board for the construction of a retail store. After a certificate of occupancy (CO) had been issued, the planning board learned that the completed project differed from the approved plans. It demanded that the owners conform the site to the plans. The owner of the store was subsequently cited for failing to apply for administrative approval for the differences between the completed project and the approved plans.

The owner sued, challenging the board’s demand for compliance with the approved plans. The lower court denied relief, stating that the owner had not exhausted all administrative remedies and, in light of the alleged deviations, needed to return to the planning board to obtain an amended site plan approval. Ultimately, the lower court remanded the matter to the planning board which determined that the deviations existed prior to the issuance of the CO, and that the deviations were more than de minimis, therefore requiring an amended site plan for approval or compliance with the original site plan. This decision was affirmed again by the lower court.

On appeal, the Appellate Division affirmed the lower court ruling. It found that the planning board did not abuse its discretion when it found the deviations from the site plan were other than de minimis. The Court also noted that the original approved resolution clearly stated that the applicant had to resubmit its plans should there be any deviation from the resolution. It held that the agent who had certified that the project had been built in accordance with the approved plans prior to the issuance of the CO was clearly in error, and therefore the owner could not rely on the CO’s issuance to support its argument that the board could not act further against it. The Court also found that no prejudice would come to the owner if it had to conform to the terms of the original site plan.

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