![]() Judge Skillman’s opinion in Cortesini leaves no doubt that a subdivision or site plan approval may be challenged if an applicant fails to obtain a necessary variance. The Superior Court upheld the Planning Board’s decision. Thereafter, an objecting third-party appealed the Planning Board’s decision to the Superior Court claiming that the approval was invalid because the applicant did not apply for, and the Planning Board did not grant, a bulk variance authorizing the pre-existing parking area setback non-conformity that would remain in existence at the site. Wal-Mart’s 2009 development application for the renovation of the existing store was approved by the Planning Board. However, the initial approvals failed to identify the need for a parking area setback variance that was clearly required pursuant to the Township’s zoning ordinance. ![]() A year later, Wal-Mart successfully secured a site plan approval that authorized the construction of the Wal-Mart as currently configured. In 2001, the initial developer of the shopping center had obtained subdivision approval for the development of the shopping center containing the Wal-Mart store. There was a pre-existing non-conforming condition on the property. store and the addition of 46 parking spaces. The proposed development contemplated a 3.6% increase in area to the current 156,963 sq. In Cortesini, the applicant, Wal-Mart Real Estate Business Trust, applied to the Hamilton Township Planning Board in 2009 for amended site plan approval along with associated bulk variances to renovate an existing Wal-Mart Store. The Court’s answer was a resounding “no” based on the facts presented. Hamilton Township Planning Board, a case that addressed the issue of whether a developer must apply for a variance in connection with a pre-existing non-conforming condition created by a prior/non-appealable development approval. Earlier this month, the New Jersey Appellate Division decided and approved for publication Cortesini v.
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