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Planning Board Over-Reaches its Grasp
by Ron Davis
The backing of local authorities for the controversial construction of a New Jersey shopping center on property zoned residential has not aided the plans of the center’s developers one bit.
The developers, the principals of Owen Properties, LLC, had sought the blessing of county planning authorities for construction of the shopping center on land they own in the town of Independence. And even though a portion of the land is zoned for residential purposes, the planning board complied with the wishes of the developers.
Afterwards, however, residential owners of property located in the zone protested. They argued that the planning board lacks authority to approve construction of the shopping center. In fact, in part of that zone designated for the shopping center, commercial use of property is strictly prohibited.
But the planning board argued that a “use variance” would permit the developers to build the shopping center where planned. Barring that, board members contended that the zoning of the development site could change.
History seemed to side with the planning board and developers. In 1989, the previous owner of that same development site sought approval from the planning board to build a shopping center on his land. In response, planning board members gave tacit approval to the site plan so long as the owner obtained a change in zoning or a use variance. But the owner did neither, then later sold the property to the current owners.
In 2003, the Independence governing body changed the zoning of that part of the developers’ property that had been zoned residential to allow commercial uses. As a result, construction of a shopping center became a permitted use on all the contested property owned by the developers.
Owen Properties later sold the land to another development group. Those developers also planned to build a shopping center at that site. They subsequently applied for site plan approval. And the Independence zoning officer responded that “the  approvals for this [shopping center] project are still in force” and that “any current changes in the approval plan will merely be referred to as amendments and subject to site plan approval.”
Nearby residential owners protested, claiming, among other things, that the planning board has no authority to approve the developers’ plans.
A New Jersey court agreed with the protestors, explaining that the planning board indeed did not have authority to grant approval based on the 1989 site-plan acceptance.
On appeal of that ruling, a New Jersey appellate court agreed, explaining, “[New Jersey’s] Supreme Court previously stated that the role of a planning board, with respect to permitted commercial or industrial uses, is the grant or denial of the site plan approved…. Therefore, our conclusion that a planning board only has jurisdiction to grant approval for a development that is a permitted use in the zoning district is consistent with prior opinions relating to this issue.” (Najduch v. Town of Independence Planning Board. 2009 WL 5125001 [N.J.Super.A.D.])
Decision: January 2010
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