Bulletin Board Magazine 2021 Volume 2

Legal/Legislative Continued

A Vineland zoning ordinance (“Ordinance) required that after a use variance was granted, the applicant must commence the use within one year. Village submitted an application for preliminary major site plan approval on March 18, 2019, and requested that the Board consider the application at its April 17, 2019 meeting. However, delays occurred and the hearing on Village’s application was postponed to the Board’s May 15, 2019 meeting. Village sought an extension of time to secure preliminary site plan approval and submitted an amended petition to the Board, meeting all notice requirements, which included a request for a variance from the Ordinance’s time limits. The Board unanimously approved the extension and site plan application, memorialized in a June 9, 2019 resolution. Plaintiff challenged the Board’s approval of Village’s application. The trial court affirmed the Board’s approval and dismissed Plaintiff’s complaint. On appeal, Plaintiff argued that the Board did not have the legal authority to grant a variance from the one-year time restriction imposed by the Ordinance. Plaintiff asserted that the Board could not consider Village’s application because one year had passed since it had approved the use variance. The Appellate Division affirmed and agreed with the trial court’s conclusion that the Board had the power to extend the time limit based on the circumstances presented. The court noted that the MLUL does not require the recipient of a use variance to proceed with development within a certain period of time and, as a general matter, a variance runs with the land once granted. The court, however, also recognized that ordinances imposing a time limit on the validity of a variance is permitted.

Ultimately, the court reasoned that a board of adjustment may grant the lifting of conditions imposed in relation to the grant of a variance “upon a proper showing of changed circumstances or other good cause warranting a reconsideration by the local authorities.” The court determined that the failure to commence the use within one year of the use variance approval was not due to Village’s inaction, and instead resulted from the Board’s need for additional time due to a large volume of applications, and therefore the facts demonstrated good cause warranting relief from the Ordinance’s one-year time limit. Where a use variance has been granted, builders and developers should confirm whether or not a municipality requires that the use be implemented within a certain period of time. Where compliance with such time limitations is not possible, an extension may be warranted if there is “good cause” for same.

Docs #5119545-v1

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