This is an action in lieu of prerogative writ demanding to overturn a decision of the Tabernacle Township Planning Board refusing to waive site plan review. Plaintiff asks that the court enjoin the Board from requiring site plan review, demands that the construction code official issue a building permit and seeks a declaration that he has an absolute right to rebuild subject only to applicable building codes. The facts are undisputed.
Plaintiff is the owner of an irregularly shaped lot .277 acres in size fronting on Route 206. The property was improved in the 1950s and 1960s with a garage and used as a gasoline service station. The verified complaint avers:
The improvements were two-fold. First a building was constructed (and attached to an adjoining building via a party wall) which served, over the years, to house a service bay operation, an office for the service station, and an auto body repair shop.
6. Second, the exterior of the Property, outside the walls of the building, were improved with various structures including asphalt paving, concrete sidewalks, various curb cuts on Route 206, and a pump island.
The improvements and use thereof are non-conforming under Tabernacle's current zoning ordinance. In March, 1991 a fire severely damaged the garage. It destroyed the roof, portions of the interior walls, and some portions of the exterior walls. However, none of the exterior improvements were touched by the fire and remain useable.
In the summer of 1991, plaintiff supplied architect's plans to the defendant Robles, the Construction Code Official, and an application for a permit to rebuild the garage within the existing footprint of the fire-damaged structure. These plans made use of the exterior walls of the garage standing after the fire. Plaintiff proposed no changes to the existing configuration of the building, its service bays, the pump island, the asphalt covering the property or any of the exits or entrances to his property via existing curb cuts.
Mr. Robles declined to issue a permit because the Planning Board required site plan review. In September 1991, plaintiff applied therefor based on minimal plans but reserved all rights including the right to assert site plan review was not required.
The basic legal proposition asserted by plaintiff, grounded in N.J.S.A. 40:55D-68 and echoed in Tabernacle's land development code, Sec. 17:15.4, is the absolute right to rebuild a nonconforming structure partially destroyed by fire. However, Tabernacle's Code pertaining to site plan review, Sec. 16:14.1a also states:
Except as hereinafter provided, no building permit shall be issued for any building or use, or reduction or enlargement in size of any building, or change in use of any building unless a site plan is first submitted and approved by the Planning Board of the Township and no certificate of occupancy shall be given unless all ...