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    GH&C Attorneys Prevail On Continuing Jurisdiction Of Zoning Board Of Adjustment

    June 23, 2014

    Adopting the arguments made by GH&C attorneys Paul H. Schneider and Steven P. Gouin, the Appellate Division of Superior Court held that with a bifurcated use variance application, a zoning board of adjustment has jurisdiction not only over the initial site plan application, but retains jurisdiction over subsequent site plan amendments that may occur years later.

    Under New Jersey’s Municipal Land Use Law ("MLUL"), zoning boards have exclusive jurisdiction to approve "use" variances and other so-called "D" variances. Zoning boards also have jurisdiction to grant "bulk" or "C" variances in conjunction with a site plan or subdivision application that also involves a "D" variance, and to grant "C" variances in situations where no site plan or subdivision approvals are required. However, only a planning board has jurisdiction to grant bulk variances in situations involving site plan and subdivision applications that do not also require a "D" variance.

    The MLUL has a separate provision for cases involving a so-called "bifurcated" application, in which a property owner first seeks use variance approval from a zoning board, and then follows up with a subsequent application for the site plan or subdivision approval. In the case of a bifurcated application, the MLUL states that a zoning board retains jurisdiction to hear these subsequent site plan or subdivision applications.

    In the recent case of FH Line Road Associates, LLC v. Aberdeen Zoning Board of Adjustment, the bifurcated application dates back to 1989, when the Aberdeen Zoning Board granted use variance approval for an indoor softball facility in September and granted site plan approval in November. The site plan approval required at least 100 parking spaces, with the facility to have at least 57 spaces on site and to lease at least 43 spaces from a neighboring property owner. In the years that followed the sports center made other land use applications and the sports center now offers indoor soccer fields and volleyball courts and sells alcoholic beverages.

    Almost 20 years after the 1989 approvals, the lease for the off-site parking area was terminated when the neighboring parking lot was sold, and the owner of the sports center and the new owner of the parking lot failed to come to terms on a new lease. The owner of the sports center went back to the Aberdeen Zoning Board for approval of an amended site plan that relocated all of the parking spaces to the property of the sports center itself. The new owner of the nearby parking lot sued, contending that this change required a new "D" variance for expansion of a nonconforming or, alternatively, if no "D" variance were required, then the Zoning Board lacked jurisdiction and the new application should have been brought before Township’s Planning Board.

    On June 23, 2014, the Appellate Division upheld the site plan approval issued by the Aberdeen Zoning Board. The Court found that "a use permitted by variance is clearly distinct from a nonconforming use," and because the sports center is a use permitted by variance and not a nonconforming use the relocation of the parking spaces was not an expansion of a nonconforming use and did not require a "D" variance. The Court also held that because the use variance involved a bifurcated application, the Zoning Board retained jurisdiction over subsequent site plan amendments.

    Because the respective jurisdiction of planning boards and zoning boards of adjustment is exclusive, it is important to carefully consider jurisdiction before filing a land use application.