Appellate Division Holds Planning Boards Cannot Condition Approval on Variance or Rezoning
By Henry T. Chou, Esq.
Reaching way back in time to void a site plan approval granted by the Independence Township Planning Board in 1989, the Appellate Division held that municipal land use boards lack jurisdiction to condition approvals for non-permitted uses upon future rezonings or use variances.
In Najduch v. Township of Independence Planning Board, the Planning Board granted preliminary site plan approval for a strip mall in 1989, on the condition on that the applicant obtain either a rezoning or use variance for the property, part of which was zoned for residential uses. The Appellate Divison ruled that the Planning Board had jurisdiction to grant approval for a non-permitted use because the approval usurped he jurisdiction of the Township Council to adopt zoning ordinances and the Zoning Board of Adjustment's power to grant use variances for non-permitted uses.