This is a land use case raising questions concerning the extent of site plan review authority and the power of planning boards to rescind site plan approvals.
Plaintiff entered into an oral agreement to purchase certain real property in the Township of Burlington. He made a $5,000 deposit, was given possession of the property under certain circumstances and had the utility bill forwarded to him. He intended to use the property as an adult entertainment center in which he would offer for sale or viewing, books, magazines, films, video cassettes and, possibly, live performances of an adult nature. He also intended to sell certain sundries including "marital aids." No structural changes were to be made to the property. He therefore filed an application with the Planning Board for site plan approval.
Prior to the Planning Board hearing on his application difficulties developed between plaintiff and the seller of the property. His deposit was returned and he was permitted only limited possession while terms of a formal, written agreement of sale were negotiated. Nevertheless, he proceeded with his Planning Board application, participated in a hearing and was granted site plan approval subject to certain conditions.
Later, the Planning Board learned of the circumstances surrounding his purchase of the property, notified him that it was considering the rescission of his site plan approval and advised him that a hearing would be held on that question on a certain date at which time he might appear and present his objections to a rescission. Negotiations concerning the terms for the purchase of the property were completed prior to that date and a written agreement of sale was executed. Notwithstanding these circumstances, the Board proceeded with the hearing and adopted a resolution rescinding its site plan approval.
Plaintiff has filed this prerogative writ action requesting a judgment setting aside the rescission and restoring site plan approval or declaring that site plan approval was not required. This opinion concludes that site plan approval was required, that the Board had authority to rescind its approval but did so erroneously and therefore restores the approval originally granted.
A. The Site Plan Requirement
The central question involved in this litigation concerns the validity of the provision in the Township's zoning ordinance, Section 19:5-1.1, which states:
Approval of site plans by resolution of the Reviewing Board shall be required as a condition for the issuance of a building permit, issuance of a certificate of occupancy, issuance for any permit required for any construction, reconstruction, conversion, structural alteration, relocation or enlargement of any building or other structure or of any mining, excavation or landfill and any use or change in the use of any building or other structure, or land or extension of use of land, for which permission may be required pursuant to N.J.S.A. 40:55D-1, et. seq. . . . .
This site plan requirement includes the definition of "development" contained in N.J.S.A. 40:55D-4.
Plaintiff argues that the enabling statute should not be construed as requiring or permitting site plan review with respect to a change of use when the change is from one permitted use to another. Plaintiff's property was used as a dance hall for teenagers, a permitted use; its proposed new use is also a permitted one. The argument has some appeal. A change in use can be very modest, e.g., an increase in the size of a family or the use of three automobiles instead of two. The subjection of the property owners to site plan review requirements for such insignificant changes ...